Dissenting Report of the Australian Greens
The Australian Greens do not support the enactment of the Law
Enforcement Legislation Amendment (Powers) Bill 2015 (the Bill) as currently
As noted in the Majority Report, Bill seeks to amend the Australian
Crime Commission Act 2002 (ACC Act) and the Law Enforcement Integrity
Commissioner Act 2006 (LEIC Act) to enhance the powers of Australian Crime
Commission (ACC) examiners to conduct examinations, and the Law Enforcement Integrity
Commissioner (LEIC), supported by the Australian Commission for Law Enforcement
Integrity (ACLEI), to conduct hearings.
Introduction of knowingly concerned
The conduct of hearings by the ACC and the LEIC has previously raised
strong human rights and rule of law concerns and has been subject to
consideration by this and other parliamentary committees. These non-judicial
administrative bodies are invested with exceptional powers—powers to compel a
person, under threat of criminal sanctions, to answer questions that could have
a material impact on the person's right to a fair trial if he or she is
already, or may be, charged with a criminal offence. As noted in the Majority
Report this can have the effect of limiting the person's right not to
incriminate him or herself.
The changes proposed in this Bill seek to expand the powers of these
bodies to conduct coercive hearings, and deny people the right to silence, even
in circumstances where the person has been charged with a criminal offence and
faces a judicial process. In so doing, the Bill significantly limits the right
to a fair trial, particularly by affecting the equality of arms principle and
the protection against self‑incrimination. As the Law Council of
Australia has summarised, the Bill authorises:
an ACC examiner to conduct an examination pre-charge,
post-charge, pre‑confiscation application or post-confiscation
application and compel answers to questions relating to an ACC special
operation or special investigation into serious and organised criminal
the Integrity Commissioner to conduct a hearing pre-charge,
post-charge, pre‑confiscation application or post-confiscation
application and compel answers to questions relating to an investigation into
law enforcement corruption.
In such an examination or a hearing, a person cannot refuse to answer a
question, or produce a document or thing on the basis that it might incriminate
them, or expose them to a penalty.
Key Issues and Concerns
The changes also seek to respond a number of judicial findings,
including findings in the High Court, that make it clear that the compulsory
examination of a person charged with an offence about the subject matter of the
pending charge constitutes a fundamental alteration to the process of criminal
justice, given the accusatorial nature of criminal justice.
These cases have brought the validity of post‑charge investigations into
question. This Bill seeks to clarify with clear statutory language that the
Parliament intends to alter the process of criminal justice in this fundamental
These are very serious issues that have given rise to concerns by a
number of submitters that the changes proposed in the Bill may be open to
constitutional challenge. Indeed, the Bill appears to have been drafted with
this possibility firmly in mind.
The Australian Greens take seriously the need to address, disrupt and
prevent serious and organised crime. The Australian Greens acknowledge that the
coercive examination powers of the ACC and LEIC are not designed to determine a
person's guilt or innocence but rather to disrupt and prevent serious and
organised crime, and to prevent suspects from disposing of valuable information
about current criminal activities, operations and practices of others that may
otherwise be lost. The information provided by the ACC and the LEIC suggests
that the X7 case
and other judicial findings
have had a significant negative impact on the operations of the ACC and ACLEI.
This is relevant and important information to consider.
The Australian Greens also take seriously the traditional common law
rights that are integral to ensuring that a person receives a fair trial,
including the privilege against self-incrimination and the right to silence.
These principles, entrenched in both common law and international human rights
law authority, are expertly outlined in the submission of the Australian Human
Rights Commission to this inquiry.
The right to a fair trial is also protected by the constitutional principle of
legality whereby 'clear and unambiguous language is needed before a court will
find that the legislature has intended to repeal or amend' this fundamental
Ensuring that a defendant is able to present his or her defence in the
manner that he or she chooses is an important component of the concept of
equality of arms, and a principle that has defined our criminal justice system
for decades. These changes risk providing the prosecution with information that
can be used against a defendant when he or she is facing serious criminal
charges. This is because derivative use immunity is not provided for in the
Bill. As a result, material obtained as a result of an ACC examination or LEIC
hearing can be used to obtain other evidence that can later be used in court
against the person. In other words, the prosecution is able to gain an unfair
advantage inconsistent with the equality of arms principle.
Both the Law Council of Australia and the Australian Human Rights
Commission have raised serious concerns with key features of the Bill. These
issues have been summarised in the Majority Report. They relate to whether:
the ACC and ACLEI should be permitted to conduct an examination
or a hearing after the person subject to the process has been charged with a
related offence or such a charge is imminent; and
the ACC and ACLEI should be allowed to disclose to a prosecutor information
received from post-charge examinations and hearings.
The Majority Report concludes that the Bill strikes a fair and
appropriate balance between the need to protect the right to a fair trial of an
examinee or witness and the need to ensure that the ACC and ACLEI are not
adversely hindered in the performance their respective roles.
Position of the Australian Greens
The Australian Greens are not confident that a fair and appropriate
balance has been struck in this Bill as currently drafted. In particular, the
Australian Greens are of the view that until the following pressing concerns
are addressed, the Bill should not proceed.
Constitutional validity uncertain
As the Law Council of Australia explains, despite the existence of some
safeguards, there is a real risk that the administration of justice will be
interfered with by coercively requiring a person to answer questions designed
to establish that he or she is guilty of the offence with which he or she is
This risk also means that there is the potential for certain provisions in the
Bill to be beyond the legislative power of the Commonwealth. As noted by
Justice Hayne and Justice Bell in X7 v Australian Crime Commission:
There may then be a question of legislative power: can the
legislature provide for the secret and compulsory examination of an accused
person about the subject matter of the pending charge? That question would call
for consideration not only of Ch III of the Constitution, but also, and more
particularly, of s 80 of the Constitution and what is meant by 'trial on
indictment' and the requirement that the trial on indictment of any offence
against any law of the Commonwealth shall be 'by jury'.
As noted by a number of submitters including the NSW Office of the
Director of Public Prosecutions, the inclusion of the severability clauses
imply that the drafters of the Bill expected that key provisions of the Bill
could be made subject to judicial scrutiny should the Bill be passed in its
This leads to an unsatisfactory level of uncertainty about the state of
the law in an area that may have very serious implications for the
investigation, disruption and prosecution of serious and organised crime, and
for the fair trial rights of those charged with such activity.
Insufficient safeguards to limit
power to conduct post-charge examinations and hearings
The Bill does not include any safeguards to limit the proposed power to
conduct post-charge examinations and hearings. This means that an affected
person would have limited recourse to the courts in circumstances where a
post-charge investigation unduly interferes with that person's right to a fair
trial. This is particularly significant given the nature of the proposed changes
in the Bill which will significantly expand the circumstances in which such
examinations and hearings can be conducted. These changes effectively mean
that, where a defendant has been charged or is about to be charged for any
offence, including a low-level crime, they can be examined about this and other
The Law Council of Australia has recommended that this particular issue
could be addressed by amending the Bill to require an ACC examiner or the
Integrity Commissioner to seek the authorisation of the Federal Court prior to
commencing a post-charge examination or hearing.
The Majority Report appears to share this concern but has stopped short of
recommending an amendment along these lines.
Insufficient safeguards to limit
disclosure of prejudicial information to a prosecutor
The Bill allows the ACC and ACLEI to disclose, to a prosecutor,
information obtained through a post-charge examination or hearing. While these
disclosure powers come with some safeguards, such as the requirement that a
court order must precede a disclosure, they are likely to be of limited
practical effect. As the Law Council of Australia notes, this is because the
court will be asked to make an order authorising disclosure prior to having the
opportunity to hear how such an order may impact on the conduct of the defence
case. This led the Law Council to recommend that:
...to protect the right to a fair trial it should be incumbent
upon a person or body that may lawfully disclose examination material to
establish 'special reasons' that justify to the court why the provision of
information to law enforcement or a prosecutor is necessary and outweighs the
public interest in the particular circumstances of the case of maintaining an
In light of the above concerns, the Australian Greens recommend that the
Bill be not be passed in its current form.
The Australian Greens also support the following recommendations made by
the Law Council of Australia that the Government should:
undertake a comprehensive review of the ACC Act which considers
whether the Act provides an effective and appropriate framework for the
investigation of serious and organised crime and adequate protection of
fundamental common law rights, such as, the right to a fair trial; and
clarify to the Parliament that this Bill in its entirety is
within the power of the Commonwealth Parliament to enact.
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